Argument preview: The First Amendment, public employment, and misperceived political association

Posted Tue, January 12th, 2016 1:53 pm by Howard M. Wasserman

The First Amendment limits, although does not preclude, patronage in public employment. A public employer cannot take adverse action against a non-political, non-policy-making employee — one holding a position for which political affiliation is not required for effective performance of the public office — because of that employee’s political and associational activity, such as voting for or supporting a candidate for office. But what if the employee suffered adverse action because of what the employer believed to be his political and associational activity, even though he was not actually engaged in any such activity? What if the employer, while explicitly intending to retaliate against the employee because of his political activity, was wrong about that activity? The Supreme Court will resolve that question in Heffernan v. City of Paterson, to be argued January 19.

Jeffrey Heffernan was a twenty-year veteran police officer in Paterson, N.J., promoted to detective in 2005 and assigned to the office of the chief of police. In April 2006, Paterson was in the midst of a mayoral election. The incumbent had the support of the chief of police (Heffernan’s ultimate supervisor) and the chief’s executive officer (Heffernan’s immediate supervisor). The challenger was a former Paterson police chief and friend of Heffernan; although Heffernan spoke regularly with his friend, he did not work on the campaign and was not even eligible to vote in the election because he did not live in the city. But Heffernan’s bedridden mother did. One afternoon, while off duty, Heffernan was at the challenger’s campaign center to get his mother a new yard sign (her old one had been stolen), when a member of the mayor’s security detail who happened to be driving by spotted him holding the sign. Word quickly spread through the department. The next day, Heffernan was demoted to patrol officer and assigned to a walking patrol post, explicitly because of his support for and involvement in the challenger’s campaign. The district court and the U.S. Court of Appeals for the Third Circuit rejected Heffernan’s claim that his demotion violated the First Amendment, holding that a retaliation claim lies only when the government retaliated against an employee who actually exercised his First Amendment rights.

Heffernan and the United States, which filed an amicus brief supporting him, focus on similar essential points.

First, Heffernan argues that the purpose of the First Amendment is to prevent government from acting with an improper purpose, citing to an article that Justice Elena Kagan wrote while teaching at the University of Chicago. Thus, the sole touchstone of a public-employee retaliation claim should be the government’s motive in taking adverse action against that employee because of the employer’s perception and belief that the employee was engaged in political or associational activity (such as displaying a yard sign or actively supporting a candidate for office). It does not matter that this perception was incorrect. So long as a government employer believed the employee was engaged in protected associational activity and took adverse employment action against him because of that belief, the employer has violated the First Amendment.

This owes to the nature of the right to be free from employment retaliation. As Heffernan puts it, the “First Amendment protects the freedom of association, not just the act of associating.” Government conduct that chills association impinges that freedom. And the government’s retaliatory motive alone creates that chilling effect, regardless of whether the employee is actually associating with anyone. Heffernan points to First Amendment cases protecting political neutrality against retaliation — an employer cannot suffer adverse job action for failing to support a particular candidate, even if he did not actively support an opposing candidate. It follows that all political inactivity is protected against intentional retaliation.

Focusing on an employer’s retaliatory intent, rather than an employee’s action, produces a simpler, more easily administrable bright-line rule, especially in this case, in which the employer’s intent is largely undisputed. An alternative approach would require detailed inquiries into the employee’s expressive or associative intent (for example, Heffernan’s intent at the moment he was observed holding the lawn sign), the substance of the employee’s political beliefs, the extent of his association, and whether the employer correctly perceived that substance and that intent. Not only is that difficult and time-consuming, but the inquiry itself may impinge on the employee’s associational rights.

Second, the Third Circuit’s approach produces absurd results, as well as an opportunity for litigants to deploy hypotheticals before the Court. Heffernan posits a second Paterson police officer picking up a lawn sign at the same moment and observed by that passing patrol car; if that second officer planned to display the sign to express support for the challenger, he would have been protected by the First Amendment, while Heffernan could be demoted. The United States posits two employees who receive invitations to a lecture sponsored by the American Constitution Society (ACS) and leave them visible on their desks; one is an ACS member who plans to attend the lecture, while the other does not plan to attend the lecture but forgot to discard the flyer. If the government fired both for the same reason — believing they are ACS members, which is highly correlated with being Democrats — the latter would have a First Amendment claim because he actually was engaged in associational activity, while the former would not. Finally, Heffernan posits a person fired from the Department of Motor Vehicles explicitly because he is Muslim who would not have a religious discrimination claim if the employer were mistaken and the employee was not, in fact, Muslim. Heffernan insists that the “sheer absurdity of these outcomes suggests that the Third Circuit’s view cannot be right.”

Those absurd results create perverse incentives. If an employer can deliberately retaliate so long as he is wrong about whether the employee engaged in political activity, he will never bother to find out what the employee was doing. This, in turn, gives the employer an incentive to try to get away with more politically motivated firing; if allowed to retaliate on factually inaccurate grounds, an employer may seek to retaliate more often on factually accurate grounds. The Third Circuit’s approach is thus most favorable to an employer that is willing to engage in politically motivated firing, careless, and willing to act on baseless suspicions or inferences about employees’ political activity that it never bothered to investigate or substantiate.

Interestingly, while supporting Heffernan, the United States frames its arguments to leave itself room to also act as a government employer. Its brief emphasizes the constitutional validity of 1) neutral, blanket limitations on all political activity by certain government employees, such as the Hatch Act’s prohibition on federal employees taking active part in political management or campaigns, and 2) government employers making political affiliation an employment condition for policy-making positions in which affiliation is appropriate or necessary to job performance. As a result, the United States urges the Court to remand the case for inquiry into whether Heffernan actually was fired not for (being perceived as) supporting the challenger against the incumbent in this race, but for violating (or being perceived as violating) an unwritten policy prohibiting all partisan activities by those working in the office of the chief of police, the sort of neutral, blanket prohibition that the United States wants governments to be able to retain and enforce.

The City of Paterson (along with the individual city officials who are also party to the lawsuit) insists that Heffernan cannot establish a First Amendment claim solely on government motivation in transferring him. The “employer’s retaliatory motivation under the First Amendment is a necessary condition for a claim, not a sufficient one.” The employee also must show that he engaged in protected First Amendment activity, such as actually engaging in some acts of political association when not employed in a position justifying political hiring. It is impossible for a government employer to retaliate against an employee unless the employee engaged in some political or associational activity against which the government could retaliate, even if the government did intend to retaliate.

The Court’s patronage cases require some individualized analysis of the employer, his position, and his conduct. This defeats the federal government’s hypothetical about the ACS invitations; only one of those employees has a First Amendment claim because only one engaged in political association. Although the brief does not address it, the city likely would respond similarly to Heffernan’s hypothetical fellow officer who, by holding the sign to express support for the opposing mayoral candidate, engaged in First Amendment activity in a way Heffernan had not. As the city describes Heffernan’s activities, “the Constitution is not concerned with family errands.”

Absent constitutionally protected political activity by the employee, the employer can transfer or otherwise take adverse action against its employees for any reason (subject to prohibitions on race and other discrimination). Had the city properly understood why Heffernan was holding the sign, it could have transferred him without violating the First Amendment precisely because Heffernan was not engaged in protected activity. That should not change because the city made a mistake about what Heffernan was doing.

The protection accorded to employees for remaining politically neutral does not alter this conclusion. The city urges a distinction between “calculated neutrality,” in which an employee takes an intentional stand by not supporting one side in a political dispute, and “agnosticism,” in which an employee remains entirely uninvolved in a political dispute. The former reflects a deliberate exercise of protected First Amendment rights, while the latter does not. And Heffernan, concededly uninvolved in the mayoral campaign, falls in the latter.

Imposing liability for an employer mistake would be especially disruptive of government operations. Because a limitless range of conduct could hint at political affiliation, any employee could bring a claim based on suspicions or rumors that the employer believed something about the employee’s affiliations and acted on it. And this logic is not limited to current employees. It also reaches mistakes about unsuccessful job applicants or unsuccessful contract bidders, who all could claim that the government mistakenly believed they supported a particular political candidate and retaliated against them for that. It reaches government conduct entirely unrelated to employment; anyone denied any government benefit (for example, a business license) could claim it was retaliation for a mistaken understanding of his political affiliations. It even reaches beyond the First Amendment context; a plaintiff who does not engage in any constitutionally protected activity could now assert a claim for damages on the ground that the government mistakenly believed he had. This rule is “both novel and dangerous in all of the myriad contexts in which it would logically apply.” It risks litigation over every employment decision, as “[m]any employees who feel they have been wrongly treated will surmise that their employers acted for some secret, invidious ‘reason.’” Requiring an employee to show that he actually was engaged in protected activity helps weed out the least plausible claims.

The city further argues that employees can be protected from employer mistakes through sub-constitutional state and local legislative, collectively bargained, and civil service rules. These “ordinary” protections “are well designed to ensure that employees are not disciplined or terminated for erroneous or improper reasons, without turning every allegation into a federal case.” New Jersey law provides a statutory cause of action for attempted violations of civil rights; the city argues that this claim fits Heffernan’s allegations, although he did not bring such a claim (“for his own reasons,” the city notes). This theme of the availability and propriety of sub-constitutional state and local remedies is driven home in the two amicus briefs supporting the city — from the New Jersey State League of Municipalities and from organizations representing state and local governments and government officials.

The city ends on a potentially significant legal argument, although framed as a contingency: It urges the Court to overrule its patronage cases, although only if the Court concludes that those cases require that bad employer motive is alone sufficient to state a constitutional claim. First Amendment limits on patronage originated with Elrod v. Burns in 1976; prior to that, “there was no doubt regarding the constitutionality of political patronage — i.e., making personnel decisions based on political affiliation, a practice that is ‘as old as the Republic’ itself.” And the limiting line the Court has drawn — whether a position is one for which political affiliation is required for effective job performance — has proven unworkable and inconsistent. While abuse of patronage perhaps undermines good governance, patronage done well can be “valuable and appropriate” in affording incentives for political participation, ensuring greater political accountability, and improving workplace efficiency. In any event, that patronage is a bad way to make employment decisions does not mean it violates the First Amendment; sub-constitutional limits remain appropriate and sufficient to avoid the worst and most harmful aspects of patronage and to handle legitimate employment disputes. As one amicus put it, the Court should resist Heffernan’s “invitation to constitutionalize what amounts to an employee grievance.”

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case. The author of this post, however, is not affiliated with the law firm.]

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On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.